Wednesday, November 14, 2007

Elliott Wolf had a few questions regarding my argument in the New Right Review and a few unclear points and minor errors have come to my attention that I would like to address. First of all, he argues that I probably should have attributed certain facts to sources (anonymous or otherwise) even though I was writing an argument (perhaps you could call it an op-ed, but it was one side of a two sided argument) rather than a newspaper story. I'm not sure what journalistic conventions or obligations may apply to such a piece (especially because I am not a journalist, and I'm not sure an argument is "journalism"), but nonetheless I will try to do so below just in case.

There were three passages that he specifically brought to my attention:

administrators handed over troves of players’ confidential information that was later used to frame suspects and obtain indictments…[and] Nifong went out of his way to do favors such as his attempted cover up [sic] for this illegally leaked information.

Elliott questioned the basis for this statement. Though there are many ways to substantiate this statement, the easiest is to cite KC Johnson's Blog entry entitled Sunday Roundup from 6/22/07 which states:

the only time when the regular Durham judiciary (Judges Stephens and Titus) stood up to Mike Nifong was last July, when Judge Kenneth Titus rejected Nifong’s request for keycard records of the non-indicted players. Titus cited the Family Educational Right to Privacy Act (FERPA). [...] the material released by the Bar suggests that “Duke University had already turned these records over to police months earlier in March evidently in violation of FERPA.”

As Gottleib testified in his deposition for Nifong's Bar hearing, this information was used in obtaining indictments. First of all, typically when I make a statement in this argument regarding someone's intentions, I figure it is implied that unless I state otherwise, I am making an educated intimation. Obviously calling it a "favor," whether it was intended as a favor or not, is a judgment call on my part and part of the argument, and I believe it is a fair one.

Passage 2

the Lacrosse Ad Hoc Review Committee, the Campus Culture Initiative and so on were planned several days before the McFadyen [sic] email became public and coach Pressler was fired. Brodhead was simply waiting for the right opportunity.

Here is the statement that I was referring to from Until Proven Innocent page 139:

Brodhead did not stop with banishing McFadyen. Accelerating plans that had already been made, he canceled the team’s season once and for all. He also appointed a gaggle of committees, to examine: (1) “persistent problems involving the men’s lacrosse team, including racist language and a pattern of alcohol abuse and disorderly behavior”—a statement misleadingly suggesting that these Duke students were racists even while a race-pandering prosecutor was making an identical case to Durham voters and potential jurors; (2) his own administration’s response to the crisis, especially complaints that it should have taken harsher action, sooner, against the team; (3) Duke’s disciplinary process; and (4) “campus culture,” including “personal responsibility,” “consideration for others,” and drinking. A fifth committee consisted of supposedly “wise figures” to advise Brodhead and the Board of Trustees. [emphasis added]

Upon second glance I realize that there are other interpretations to the emboldened text, but it was my interpretation that it applied to all of the plans in this paragraph. Because I can't imagine that plans to cancel a season would be complicated enough to require a period of several days or weeks between the decision and the cancellation or announcement, my instinct was that KC was referring to all of these plans. If I am incorrect in interpreting KC's intent, then that is why. Even if I am incorrect in that interpretation [I will update when he responds], then I would not be surprised my argument is nonetheless correct for at least some of the committees, and I will see if I can find other sources that shed light on this. As Elliott acknowledged to me, "one statement from the academic concil [sic] talked about the review committee before the email, but not the cci [sic]." If I did make a mistake, it was relatively insignificant and benign.

Given that Brodhead pulled four more committees out of his pocket on the same day that the McFayden email was released to the public, my guess would be that some sort of plans had been in the works. After all, which takes longer: "planning" the cancellation of a lacrosse season or outlining and organizing five separate committees with separate and formidable tasks? You decide.

Passage 3

“it was Duke that collaborated with police and [Alcohol Law Enforcement] to illegally raid student off campus houses without warrants—well in excess of 100 instances—so that Judicial Affairs could subject them to Duke justice.”

My sources behind this statement are all necessarily anonymous and I will keep them that way for the time being. Now apparently I misunderstood the precise relationship between ALE and the Durham Police. I am aware that ALE and the Durham Police collaborate a great deal, though that does not necessarily mean that policies discussed or arranged between Duke administrators and the Durham Police are actually discussed with ALE as well, even if they both act on them together or separately but in similar ways. Given what my sources have explicitly said, technically I should probably have only said that Duke collaborated with the Durham Police in developing and/or approving the policies that led to this sort of behavior. Nonetheless, there is a remarkable similarity in the behavior of ALE and the Durham police, who were in fact working together in many of the actions in question (see next block quote).

Note that in this argument I have not made the allegation that Duke sought out the Durham Police or ALE with these policies as opposed to vis-versa, though I am asserting that they were at the least mutually involved in the process of creating and approving some of these policies. Legally I understand that there is a difference in who approached whom, and maybe civil suits will shed light on that, but is it really any less disturbing to know that Duke approved of a policy like the Good Neighbor policy even if they didn't create it? You decide. That goes perhaps one step further than Until Proven Innocent, which states:

It was to appease neighbors that Duke’s administration had helped devise the police program targeting Duke’s own students for selective arrest and prosecution on petty charges for which other Durhamites would not be arrested. Duke president Richard Brodhead was later to acknowledge this arrangement, which Duke called its Good Neighbor Policy. But this crackdown had elements of a reign of terror. The year began with a series of planned, warrantless raids of student parties off campus. The police, joined by Alcohol Law Enforcement agents, raided several homes in pursuit of underage drinking.

As always, I am happy to answer questions about anything I print or say to the best of my ability and liberty and in a reasonably timely fashion, and the same goes for Duke Students for an Ethical Duke. We are also always willing to issue corrections when it becomes clear they are necessary. I post these explanations because Elliott tells me people have asked him about the these passages, and I figure that others may have similar questions as well.

Sincerely,Ken LarreyDuke Students for an Ethical Duke

[Edited 10:02 pm 11/17/07]The above explanations were provided to Elliott Wolf in advance of his November 15 Column entitled "Physician, Heal Thyself." I have not really made any corrections of significance in it of my argument in the New Right Review (there are a couple minor things that I will be happy to correct) in this post, but I do not wish to modify this post (this edit aside) in order that people may see exactly what was provided to and ignored by Elliott in his column.

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